I concur with Mr. Justice Bradley in his view that the amendment of 1887 to the statute of 1873, relative to adoption, conferred on the defendant Josephine Dodin the right to inherit from her adopting father, though her adoption was prior to the enactment of the amendment. I am strongly of the opinion, however, that the testator never intended that his adopted child should share in his residuary estate. In the second clause of his will lie refers to his son,, the defendant Alexander, as his son and only .child.” By the fifth clause of his will he directs, the creation , of a fund of $15,000, the income to be applied to his “adopted daughter,called Josephine Dodin, during her minority,” the fund to go to her on her attaining majority, and in case of her death before that time, to fall into his residuary estate. This provision is hardly consistent with an intention that the adopted daughter should share in that residuary.estate. While the law made the defendant Josephine a legal child of the deceased, the test is not what her status was at law, but how she is treated in the nomenclature or vocabulary of the testator. (Gelston v. Shields, 16 Hun, 143; 78 N. Y. 275.) But this view does not aid the appellant. He concedes, and in fact asserts as an argument in his favor, the well-known principle that, to exclude the heir at law mere negative words will not suffice; there must be an actual disposition of the estate to some other - person. He forgets, however, that, if our view of the construction of the statute is coriéct, the adopted daughter was as much an heir at law of the testator as if she had sprung from his loins, and that the same rule- that favors the . son equally favors the daughter and forbids her exclusion from her patrimony. If the gift of the residuary had been to the testator’s wife and child, we might well hold that the only child contemplated by the testator was his natural son. But the direction is that the remainder shall descend and be distributed according to the laws of ■ the State of New York. As under those laws the adopted daughter *49is entitled to an inheritance, this is a devise to her, though, as already stated, my fear is that the testator did not intend this disposition of his estate. The difficulty has proceeded from his ignorance of the statutory law on the subject of descents, an ignorance which we cannot remedy by making a new will for him.
Judgment affirmed,"with costs payable out of the fund.